U.S. v. Pendleton, No. 10-1818 (3d Cir. 2011), addresses in the criminal law context the issue of venue in an international matter. The defendant was convicted of a crime in Germany, where all the criminal acts occurred. He served 19 months in a German prison, returned to the U.S., and was arrested and indicted for engaging in noncommercial sexual conduct in a foreign place, in violation of 18 U.S.C. sec. 2423(c) and (f)(1). The legislation was part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today, also known as the PROTECT Act.
His venue challenge focused first on a claim that there was a mandatory venue provision, Section 3237(a), which the defendant maintained required that he be prosecuted in the Eastern District of New York (where he left the U.S. to fly to Germany), rather than in Delaware, where he was arrested. The Third Circuit rejected his argument, first finding that the language of the statute, which declared where a defendant “may be inquired of and prosecuted”, was permissive and not mandatory and did not statutorily bar the government. The U.S. Constitution also did not “command a single exclusive venue”.
The Court of Appeals then observed the disparate rulings of various other Circuit Court of Appeals, two (the Second and the Ninth) having held that Section 3238 (permitting venue where the defendant is arrested where the offense was committed “out of the jurisdiction of any . . . district”) did not apply unless the offense was committed entirely on the high seas or outside the U.S. Under this reading venue was not proper in Delaware, since under the PROTECT Act “an essential conduct element” of the offense was “foreign travel, which had to occur (or at least commence) within a district of the U.S.
On the other hand, the Third Circuit observed that two other Circuits, the Fourth and the Fifth, permit the application of the venue provision of Section 3238 “even when some of a defendant’s conduct takes place in the United States”. The Third Circuit followed the Fourth and Fifth Circuits and upheld the conviction against both the venue